Constr. and General Laborers, Local 452

National Labor Relations Board - Board Decisions

Sep 27, 1971

193 N.L.R.B. 375 (N.L.R.B. 1971)

CONSTR. AND GENERAL LABORERS, LOCAL 452
Construction and General Laborers Local Union No.
452, Laborers International Union of North Ameri-
ca, AFL-CIO and Eastern New York Construction
Employers, Inc. and Local 78, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO.
Case 3-CD-368
September 27, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
the filing of charges by Eastern New York Construc-
tion Employers , Inc., on behalf of Wade Lupe
Construction Co., Inc., herein called the Employer,
alleging that the Respondent , Construction and
General Laborers Local Union No. 452, Laborers
International Union of North America , AFL-CIO,'
had violated Section 8 (b)(4)(D) of the Act. A duly
scheduled hearing was held in Albany, New York, on
June 29 , 1971, before Hearing Officer John H. Sauter,
at which Local 78, United Brotherhood of Carpenters
and Joiners of America 2 also appeared. All parties
appearing were afforded full opportunity to be heard,
to examine and cross -examine witnesses, and to
adduce evidence bearing upon the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three -member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, Wade
Lupe Construction Company, Inc., a New York State
corporation, is engaged in building construction. In
the conduct of its business operations, the Employer
during the past year purchased and transferred
materials valued in excess of $50,000, to its construc-
tion sites within New York State from States other
than the State of New York. Accordingly, the parties
stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and
i Referred to hereinafter as Laborers
2 Referred to hereinafter as Carpenters
375
(7) of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers is
a labor organization within the meaning of Section
2(5) of the Act. The Employer, however, refused to
enter into the same stipulation with regard to the
Carpenters. The record shows that Carpenters, a
member of the Albany, Schenectady, Troy, and
Vicinity, District Council of Carpenters, engages in
collective bargaining, processes grievances, and nego-
tiates contracts on behalf of its members. According-
ly, we find that Carpenters is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The Employer is a member of Eastern New York
Construction Employers, Inc., the Charging Party.3 It
began construction of modern classroom facilities at
RPI in Troy, New York, about November 1, 1970. On
May 19, 1971, when the Employer was engaged in its
first foundation and wall construction, Project Super-
intendent Stannard met with the Laborers and
Carpenters stewards. At this meeting, the stewards
decided that the stripping of walls and foundations
should be performed with a 50-50 composite crew of
laborers and carpenters, and the first stripping was
done that day with such a crew. The next day,
Carpenters Business Agent LaCrosse came to the
jobsite and presented Stannard with a copy of a 1949
Agreement between the Carpenters and Laborers
Internationals which contained the Internationals'
agreement that such stripping should be assigned to
carpenters. On the same day, Laborers Business
Agent Probeck visited the job and told Stannard that
if the Employer followed the 1949 Agreement his
laborers would leave the job. He also told Stannard
that the procedure agreed to by the stewards should
be continued since it had already been established.
The next day, Stannard was given a copy of a 1969
document which the Employer had received from the
Association recommending various labor assign-
ments. This document stated that stripping should be
assigned to members of the Carpenters and Stannard
followed this recommendation by assigning the
second stripping to carpenters on May 24. On that
day, the Laborers steward told Stannard that if
laborers were not going to do the stripping, they
would leave, and the laborers did leave the jobsite that
day. On one other occasion, when stripping was again
9 Referred to hereinafter as the Association.
193 NLRB No. 57
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigned to carpenters, the laborers left the job. All
stripping since the first stripping has been done by
members of the Carpenters.
B. Work in Dispute
The work in dispute involves the stripping of the
wall and column forms into which concrete has been
poured . Members of the Carpenters construct the
forms by first nailing two-by-fours to concrete
footings and nailing plywood to the two-by-fours. The
form is then braced and held together with metal snap
ties and clamps . After concrete is poured into these
forms and sets, the entire form has to be dismantled. It
is the dismantling or releasing of these forms-the
stripping-which is the work in dispute.
The stripping is accomplished by first taking off the
snap ties and clamps , and pulling the plywood forms
away from the concrete . The task involves the use of
hammers, pinch bars, and other prying tools. After
the form is stripped and falls away from the concrete,
laborers are used to clean the forms , remove the nails,
and reoil them so that they can be reused . Members of
the Laborers are also used to carry the forms to the
next area on the jobsite for reconstruction by the
carpenters . There is no dispute with regard to the
cleaning , reoiling , and transporting of the forms.
C. Contentions of the Parties
The Charging Party contends that concrete form
stripping should be done by the carpenters except for
the last stripping on the job , which it contends the
laborers should do , and urges that the scope of the
award include all locals in the Carpenters District
Council . The Carpenters takes the position that the
Employer 's assignment is correct and that the order
should be limited to the particular dispute in question.
Laborers , however , argues that all stripping should be
assigned on a 50-50 laborer-carpenter composite crew
as it had been prior to 18 months ago and as it was
agreed to by the stewards . The Laborers also contends
that the order should encompass those local union
jurisdictions for which Carpenters Business Agent
LaCrosse serves as business agent.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8 (b)(4)(D) has been violated.
The uncontradicted evidence discloses that on or
about May 20, 1971, after Project Superintendent
Stannard had received instructions from the Employ-
er as to the work assignment , Laborers Business
Agent Probeck visited the job and stated that if the
Employer followed that assignment his laborers
would leave the job . On May 24 , 1971, when the
second stripping was assigned to carpenters , Laborers
Steward Mone stated to Stannard , after checking with
the union hall, that if laborers were not assigned the
stripping they were leaving . The laborers then left the
jobsite for the rest of that day . In addition , about a
week later , laborers left the job when carpenters were
assigned stripping . On the record as a whole, and
without ruling on the credibility of the testimony in
issue, we are satisfied that there is reasonable cause to
believe a violation of Section 8(b)(4)(D ) has occurred
and that the dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
1. Certification and collective- bargaining
agreements
As there is no evidence that a Board certification
covers the work in dispute, and as neither the
Laborers nor the Carpenters contracts with the
Employer mention stripping , we find that these
factors are not useful in making our determination.
2. Employer and area practice
Although there is no evidence in the record of the
Employer 's practice , the facts do show that the area
practice , since April 1969, has been to assign the work
in dispute to carpenters . Prior to that time , stripping
of concrete forms was assigned to a composite crew of
both laborers and carpenters , but in the fall of 1968
numerous disputes arose with respect to such assign-
ments . For this reason a committee of general
contractors who are members of the Eastern New
York Construction Employers, primarily from Alba-
ny, Troy, and Schenectady , met and decided that, on
the basis of efficiency and economy of operation and
its recent area practice , stripping would be assigned to
carpenters , unless it was the last stripping on the job in
which case that stripping would be assigned to
laborers . This decision was also in conformance with
a 1949 Agreement between the Carpenters and
Laborers Internationals. The Association issued a list
of recommended work assignments which contained,
among other things , the recommended assignment of
stripping work . The evidence shows that, since that
time, members of the Association make the assign-
ment of stripping operations in accordance with the
April 1969 recommendations.
With respect to the Troy area, the record shows that
CONSTR. AND GENERAL LABORERS, LOCAL 452 377
in 1969 a dispute arose regarding concrete stripping
on a project of another employer, but on the same
RPI campus. This dispute was submitted to the
National Joint Board for Jurisdictional Disputes
which stated that the work should be assigned
according to the 1949 Agreement referred to supra.
The Carpenters business agent testified that since that
time almost all stripping in the Troy area has been
done by his members. The area practice, therefore, of
assigning stripping to carpenters while assigning the
last stripping on the job to laborers favors the
Employer's assignment.
3. Skills, efficiency, and economy
The record indicates that the actual stripping work
is not difficult nor does it require any great measure of
skill, and , therefore, both groups of employees possess
the necessary skills to perform the work. With respect
to efficiency and economy of operation, the record
does not disclose the full range of the respective duties
of laborers and carpenters, and therefore, there is
insufficient evidence to show whether this factor
favors either group. Accordingly, we find that the
resolution of the dispute cannot rest on factors of skill
and efficiency and economy of operation.
Conclusions
Having considered all pertinent factors present
herein, we conclude that employees who are repre-
sented by the Carpenters are entitled to perform the
work in dispute. This assignment is consistent with the
initial assignment, and the area practice. In making
this determination, we are awarding the work in
question to employees represented by the Carpenters,
but not to that Union or its members. The present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following determination of dispute:
1. Employees of Wade Lupe Construction Co.,
Inc., who are currently represented by Local 78,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are entitled to do all stripping of
concrete forms other than the last stripping on the
Employer's project at the RPI campus in Troy, New
York.
2. Construction and General Laborers Local
Union No. 452, Laborers International Union of
North America, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require Wade Lupe Construction Co, Inc ., to assign
the above work to its members or employees whom it
represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the labor organization
listed in the preceding paragraph shall notify the
Regional Director for Region 3, in writing, whether or
not it will refrain from forcing or requiring Wade
Lupe Construction Co., Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to its members or employees whom it
represents rather than to employees of Wade Lupe
Construction Co., Inc., represented by Local 78,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO.